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Civilian contract employees can now be prosecuted under the UCMJ

As they headed to the Baghdad airport in July, two security guards working for the contract firm Triple Canopy say they were stunned when their supervisor declared that he intended that day to kill somebody.

The supervisor then fired his M4 rifle into the windshield of a parked truck, the two guards claim in court documents. Later in the day the supervisor fired half a dozen handgun rounds into a passing taxi, possibly killing the driver, the two guards allege.

No investigation followed and no disciplinary action was taken against the alleged shooter, who returned to the United States, say the two who have filed a suit in a U.S. court. They’re suing, they say, because they were wrongfully fired by Triple Canopy after they reported the incident.

All three guards were fired “for failing to report the weapons firing incidents within the required notification period,” said Triple Canopy spokeswoman Jayanti Menches.

“The company was shocked and disappointed to learn of the events alleged in the lawsuit,” Menches said. “When the incidents became known, Triple Canopy took immediate action to determine what occurred” and informed its prime contractor and U.S. authorities.

“Triple Canopy’s internal investigation found no evidence that anyone was harmed,” she said.

From civilian interrogators who abused detainees in Iraq’s notorious Abu Ghraib prison, to eight DynCorp employees who admitted they had “purchased women and girls from brothels” in Bosnia in 1999 and 2000, dozens of contractors hired by the U.S. military have committed crimes with impunity.

But crime without threat of punishment may become less common due to a little-noticed change in U.S. law last fall. Congress quietly broadened the Uniform Code of Military Justice so it applies to contractors serving with U.S. military forces in contingency operations. The UCMJ used to apply to contractors only during declared wars, the last of which was World War II.

The change is the work of Sen. Lindsey Graham, R-S.C., who said it would “give military commanders a more fair and efficient means of discipline on the battlefield” by placing “civilian contractors accompanying the armed forces in the field under court-martial jurisdiction during contingency operations as well as in times of declared war.”

Graham, a former Air National Guard lawyer and a current Air Force Reserve judge, made his feelings about contractors’ abuses known during a Senate hearing into the Abu Ghraib scandal in 2004.

“The American public needs to understand, we’re talking about rape and murder here. We’re not just talking about giving people a humiliating experience, we’re talking about rape and murder and some very serious charges,” Graham said.

A crackdown on contractors is “long overdue,” said Peter Singer, a military scholar at the Brookings Institution who has studied the use of civilian contractors in contemporary wars.

Before the new law was passed, “whenever our military officers came across episodes of suspected contractor crimes in missions like Bosnia, Kosovo, Iraq or Afghanistan, they had no tools to resolve them,” Singer said.

So even when military investigators discovered a videotape a DynCorp employee had made of himself raping a woman at a U.S. military base in Bosnia in 1999, no legal action was taken.

Contractors escaped through a gap in the law, Singer said. They were not covered by the UCMJ, and while they are subject to local laws, often, as in Iraq, there is no functioning legal system for prosecuting criminal activity. Instead, when misdeeds are uncovered, contract employees tend to be fired by their employers and hustled back home.

This isn’t the first time Congress has tried to subject contractors to the rule of law. In 2000, lawmakers passed the Military Extraterritorial Jurisdiction Act (MEJA) to give the U.S. Justice Department authority to prosecute contractors under U.S. law for crimes committed overseas.

Problem is, the Justice Department hasn’t used it, Singer said.

MEJA relies on federal prosecutors back in the U.S. to decide to prosecute, and then gather evidence from the war zone, Singer said. “The reality is that no U.S. attorney likes to waste limited budgets on messy, complex cases 9,000 miles outside their district.”

As a result, the Justice Department conceded in a report to Congress in 2006 that it failed to act on more than 20 investigations of suspected contractor crimes, he said.

How — and Singer asks whether — military prosecutors will apply UCMJ regulations to civilian contractors is up to the Defense Department, said Kevin Bishop, a spokesman for Graham. “Senator Graham has great confidence” that military leaders will use their new authority to punish contractors who commit serious crimes, he said. “Military commanders wanted this type of control.”

The breadth of the military’s new authority is making some contractors nervous, though. Placing contract employees under the UCMJ might mean they can be prosecuted for behavior that is not considered criminal under civilian law, said Stan Soloway, president of the Professional Services Council, an organization that represents government contractors.

“The UCMJ is a code of behavior” as much as it is a legal code that applies to military personnel, Soloway said.

Offenses under the UCMJ include crimes such as burglary, robbery, rape and murder. But they also include being absent without leave, showing contempt toward officials and “conduct unbecoming an officer and a gentleman.”

Will those apply to contractors? “If you’re walking down a street and flip off a general — is that showing contempt toward an officer?” Soloway asked. What about drinking while on duty? How about committing adultery? “Stuff we would not prosecute” under civilian law suddenly is a punishable offense under the UCMJ, Soloway said.

Putting contractors under the UCMJ also raises questions about contractual obligations, said Edward Cornejo, business manager for Exponent Inc., a San Diego high-tech firm that has employees working for the Army’s Rapid Equipping Force in Iraq and Afghanistan. Tactics in the two war zones change continuously, and Exponent’s job is to provide the U.S. military with off-the-shelf technology to support the new tactics, Cornejo said.

“We’ve got a statement of work and we report to one person — a major,” he said. But what happens if a colonel orders Exponent employees to do something outside the statement of work? “We do it and we don’t get paid for it. We had an incident last year along these same lines,” he said.

Except now the choice might be you do it and you don’t get paid or you don’t do it and you get prosecuted.

“Our people are worried,” Cornejo said.

Soloway expressed the same concern. “If a general or colonel directs a contractor or government civilian to do something that is outside terms of contract, under U.S. procurement law, the contractor does not do it without authority from the contracting officer,” Soloway said. But under the UCMJ, refusal “might be failure to follow an order.”

“We’re deeply concerned that the broad and arbitrary application of the UCMJ imposes a whole range of behavioral requirements” on contract employees, Soloway said.

That’s not how the new law is intended to be enforced, said Bishop, Graham’s spokesman.

Contractors’ fear of being charged with “disrespecting an officer, things of that nature — it’s not designed to get into all that ticky-tack stuff.” If military commanders start prosecuting contractors for those sorts of infractions, “we may see Congress take another look at it. The intent was to give them a tool to take action” against violations that are serious enough to damage U.S. national interests, he said.

The new law is aimed at crimes such as the torture, killings and other abuses committed by civilian interrogators at Abu Ghraib, where “some members of the military were held accountable, but the contractors were never brought to account,” Bishop said.

Concern that contract personnel will be prosecuted for disrespecting an officer, fraternization or other actions that are not violations of civilian law is probably exaggerated, Singer said.

It would be reasonable to prosecute civilians under the UCMJ for felony violations, but not for lesser offenses, he said. That is the level at which prosecution is supposed to occur under MEJA.

But Soloway would rather see such limits spelled out. “There needs to be a way that contractor and government employees can be prosecuted for criminal acts,” he agreed. But the Professional Services Council would prefer to have MEJA expanded rather than have contractors subjected to the UCMJ.

But for too long, Singer said, contractors have taken advantage of “the unregulated marketplace.”

If private individuals want to do military jobs for profit in war zones on behalf of the U.S. government, then they should agree to fall under the same laws as U.S. soldiers, he said.